BRAWAL LINES LIMITED v. DEE-DAMOR DEVELOPMENT COMPANY LIMITED (2015)

BRAWAL LINES LIMITED v. DEE-DAMOR DEVELOPMENT COMPANY LIMITED

(2015)LCN/7810(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of March, 2015

CA/B/214/2012

RATIO

STATUTE OF LIMITATIONS; THE FUNDAMENTAL OBJECT OF A STATUTE OF LIMITATION AND THE FUNDAMENTAL OBJECT OF A STATUTE ESTABLISHING A TIME LIMIT FOR PROSECUTING A CRIMINAL, BASED ON THE DATE WHEN THE OFFENCE OCCURRED

Instructively, the term Statute of Limitations (equally termed, Non-Claim Statute; Limitations Period, et al) is an 18th Century Common Law derivative, referring to the law that bars claims after a specified period. In other words, it’s a statute establishing a time limit for suing in a civil case, based upon the date the claim accrued; as for instance, when the injury occurred or was discovered. The fundamental object of such a statute is to require diligent prosecution of known claims, thereby (i) providing finality, nay predictability, in legal affairs; and (ii) ensuring that claims will be resolved while evidence is reasonably available and fresh. See BLACK’S LAW DICTIONARY, 9th Edition, 2009 @ 1012; 1546; ORDER OF R.R. TELEGRAPHERS VS. RAILWAY EXPRESS AGENCY, wherein the USA Supreme Court had aptly held that the –
Statutes of limitations, like the equitable doctrine of laches in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. See 321 u.s. 342, 348 -349, 64 Sct. 582, 586 (1944).

Similarly, in Criminal Law, the fundamental object of a statute establishing a time limit for prosecuting a criminal, based on the date when the offense occurred, is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts, the legislature has decided to punish by criminal sanctions. As aptly held by the US Supreme Court –
Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts have become obscured by the passage of time and to minimize the danger of official punishment because of facts in the far distant past. Such a fine limit may also have the solitary effect of encouraging law enforcement officers promptly to investigate suspected criminal activity. See TOUSSE VS. UNITED STATES, 397 u.s. 112, 90 Sct. 858 (1970).
Indeed, it is a trite and well settled doctrine, that the fundamental object of a statute of limitation is to void (terminate) a person’s right of action, the right to seek and enforce any judicial relief against a party. Thus, where a plea for statute of limitation or statute bar is upheld by a court of competent jurisdictional competence, the complainant is sorrowfully left with a bare and unenforceable cause of action. See EGBE VS. ADEFARASIN (No. 2) (1987) 1 NWLR (Pt. 47) 1 @ 4; ELABANJO VS. DAWODU (2006) 15 NWLR (Pt. 1001) 76 @ 132 paragraph F; MAJEKODUNMI VS. ABINA (2002) 3 NWLR (Pt. 755) 720.
Most particularly, in the case of MAJEKODUNMI VS. ABINA (Supra) @ 132 paragraph F, the Apex Court was recorded to have aptly, and rather authoritatively, held that –
The relevant provisions of the Limitation Law in question are principally about preventing a person from bringing action to recover land when his title to the land has been extinguished after 12 years of adverse possession by another. In other words he will be unable to seek a declaration of title or an order to recover possession of land to which his title is extinguished. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.

ACTION; CAUSE OF ACTION; THE CARDINAL PRINCIPLE THAT GUIDES THE COURT IN ASCERTAINING A CAUSE OF ACTION AND THE INTERPRETATION OF ‘A CAUSE OF ACTION’

Invariably, the cardinal principle that guides the court in ascertaining a cause of action, is that the primary originating processes, that’s to say, the Writ of Summons and the Statement of Claim (where filed), must be critically, albeit dispassionately, considered. See ABUBAKAR VS. B.O. & A.P. LTD (2007) 18 NWLR (Pt. 1066) @ 35 -36 paragraphs F -A, wherein the Supreme Court aptly held, inter alia, thus:
After determining the cause of action then by the very averments, the court can discern the time that a cause of action arose. Literally, the word ’cause’ means something that produces an effect or result. Jurisprudentially, the term ’cause of action’ denotes a group of operative facts giving rise to one or more bases for suing. In other words, cause of action is a factual situation that entitles a person to seek and obtain a remedy in court from another person. Most interestingly, jurists all over the common world have found it difficult to accord a proper definition to the cause of action. According to Edwin E. Bryant, a cause of action:
May be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be -(a) a primary right of the Plaintiff actually violated by the defendant; or (b) the threatened violation of such right, which violation the Plaintiff is entitled to restrain or prevent, as in the case of actions or suits for injunction; or (c) it may be that there are doubts as to some duty or right, or the right beclouded by some apparent adverse right or claim, which the Plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property. See PLEADING UNDER THE CODES OF CIVIL PROCEDURE (1879), 2nd Edition @ 170, quoted extensively in BLACK’S LAW DICTIONARY (Supra) @ 251.
Contradistinctively, the term ‘new cause of action’ invariably refers to a claim not arising out of, or relating to the conduct, or occurrence, or transaction contained in the original pleading. It is trite that a Plaintiff may add claims to a suit without being adversely affected by a statute of limitations bar, as long as the original pleadings was timely filed. This is predicated on the trite principle, to the effect that an amended pleading often relates back to the date on which the original pleading was filed.
Jurisprudentially, the term ’cause of action’ has been interpreted as the entire circumstances giving rise to an enforceable relief of a party’s claim. That’s to say, what in effect amounts to
The fact or combination of facts which gives rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the Plaintiff his cause of complaint and the consequent damage. See SAVAGE VS. UWECHIA (1972) 3 SC, 214 @ 221 per Fatayi-Williams, JSC (as the learned Lord then was). See also ARABAMBI VS. ADVANCE BEVERAGES IND. LTD (2006) ALL FWLR (Pt. 295) 581 @ 597, per Aloma Murkhtar, JSC (as the learned Lord then was). per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.

APPEAL: COURT RULES; THE DUTY OF THE APPELLANT TO COMPILE AND TRANSMIT THE RECORD OF APPEAL TO THE COURT OF APPEAL UNDER ORDER 8 OF THE EXTANT COURT OF APPEAL RULES 2011

It is trite, that under Order 8 of the extant Court of Appeal Rules, 2011, the Appellant has an onerous duty to compile and transmit the Records of Appeal to the Court of Appeal. What’s more, by Order 8 Rule 7 of the said Rules, every Record of Appeal shall contain the following documents:
(a) the index;
(b) a statement giving brief particulars of the case and including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the record of appeal;
(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal.
However, I am not unmindful of the provision of Rule 8 of the said Order 8, which is to the unequivocal effect that –
8. The Registrar or the Appellant in compiling the record shall endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition…; but the documents omitted to be copied shall be enumerated in a list at the end of the record…
Most regrettably, the above unequivocal provisions of Order 8 of the Rules of this Court have not been diligently complied with by the Appellant and no explanation whatsoever was given for the non-compliance. Undoubtedly, the Writ of Summons evidently omitted from the record are very crucial to the determination of the appeal.
As authoritatively pontificated upon by the Apex Court not too long ago –
It is the duty of the Appellant to place before appellate court all relevant documents necessary for the determination of his appeal….
I think it is true that appellant who desires to have its appeal heard and determined timeously must place before the court, either through the Registry of the trial court or by himself when the Registry fails to transmit the record, all such documents that would assist the timeous and judicious determination of the appeal. Where necessary documents are not in the record (as in the instant case, the Writ of Summons), such an appeal is likely or liable to be struck out. See OSUNG VS. THE STATE (2012) 18 NWLR (Pt. 1332) 256 @ 279 paragraphs B-H; 280 paragraphs A-B, per Muntaka-Coomasie, JSC. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT OF FAIR HEARING; THE DUTY OF THE COURT TO HEAR BOTH PARTIES ON THE ISSUE BEFORE PROCEEDING TO STRIKE OUT THE APPEAL

However, the above contention notwithstanding, it’s so obvious that this court cannot terminate the appeal at this crucial point in time without according the respective parties, especially the Appellant, the right of fair hearing on the issue in question. This is absolutely so because, the issue of whether or not the appeal is incompetent on the fundamental ground of the record of appeal being incomplete does not form part of the issues joined upon by the respective parties. In such a circumstance, therefore, it’s most desirable for the court to hear the respective parties on the issue before proceeding to strike out the appeal on the ground of the appeal being incompetent. As aptly held by the Apex Court –
It is most desirable that if a court considers after hearing argument of counsel that a matter before it can infact be decided on a technical point on which it has not been addressed by counsel then the Judge (or appellate court, as the case may be, should have the matter re-opened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives Judgment in regard to it. It is only after so acting that a court should adjudicate on a technical point taken by the court itself, particularly when the defect, if there was one, could be cured if the court, in its discretion, give leave to amend. See AUGUSTA COLE VS. SERGIUS OLATUNJI MARTINS & ANOR (1968) 1 ALL NLR 161 @ 162 to 163 per LEWIS, JSC. See also THE REGD TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA VS. RAHMAN AKINDELE (1967) 1 NMLR 263, per LEWIS, JSC. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.

ACTION: HOW TO DETERMINE WHETHER AN ACTION IS STATUTE-BARRED

It is a trite fundamental principle, that in considering whether an action or matter is statute-barred, it’s incumbent upon the court to bear in mind the very rhetorical, albeit pertinent, question: “When does time begin to run?” And the answer to that pertinent question is not at all far-fetched. As aptly asserted by the Apex Court –
Time begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be prove to entitle the Plaintiff to succeed. In the instant case, the right of action clearly accrued in 1994, when the Respondent became aware of the existence of exhibit C, a letter from the Central Bank of Nigeria, to the Appellant, as the Respondent could not reasonably be expected to file an action against the Appellant when the appellant was always giving it assurances that its bills and letters of credit were being processed by the Central Bank. See UBA PLC VS. BTL INDUSTRIES LTD (2007) ALL FWLR (Pt. 352) 1615 @ 160 -161 paragraphs H -D. Per Belgore, CJN. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF A COURT OR TRIBUNAL TO CONSIDER ALL THE ISSUES RAISED FOR DETERMINATION IN A MATTER BEFORE IT

It is a well settled fundamental doctrine, that it behoves a court or tribunal to consider all the issues raised for determination in a matter before it. Failure to do so may tantamount to a breach or denial of fair hearing, cherishingly enshrined in the Constitution of the Federal Republic of Nigeria, 1999, as amended. See Section 36 of the 1999 Constitution; TANKO VS. UBA PLC (2010) 17 NWLR (Pt. 1221) 80 @ 93-94; DINGYADI VS. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1 @ 51 paragraphs G-H. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.

ACTION: CAUSE OF ACTION; HOW TO ASCERTAIN A CAUSE OF ACTION

I would want to hold, that what the lower Court did in the circumstance was in accord with the trite principle of law, to the effect thus – It is a cardinal principle of law that to ascertain a cause of action, the immediate materials a court should look at are the Writ of Summons and the averments in the Statement of Claim, for it is by examining them that a court can satisfy itself on the actual grouse of a party and the remedy or relief it is seeking from the court. After determining the cause of action then by the very averments, the court can discern the time that a cause of action. See ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS (2007) 18 NWLR (Pt. 1066) @ 35-36 paragraphs F-A. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF A COURT OF ORIGINAL OR APPELLATE JURISDICTION TO RESTRAIN ITSELF FROM DELVING INTO THE SUBSTANTIVE ISSUE(S) OF THE MATTER

Indeed, it’s a tritely fundamental doctrine, that a court in the exercise of the original or appellate jurisdictional competence thereof, has a duty to restrain itself from delving into the substantive issue(s) of the matter. See GADI VS. MALE. It was aptly reiterated by the Apex that – Where the court errs and decides the substantive matter at the interlocutory stage as in the instant, the proper thing to do is set the purported determination and remit the matter to the lower Court for proper determination on the merit by a different panel. See OJUKWU VS. YAR’ADUA (2009) 12 NWLR (Pt. 1154) 50 @ 176 D-E. See also WALE VS. GOVERNOR EKITI STATE (2007) 2 NWLR (Pt. 1019) 634 @ 656 paragraphs A-B, D-E; AKAPO VS. HAKEEM-HABEEB (1992) 6 NWLR (Pt. 247) 266 @ 287. per. IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A.

JUSTICES

IBRAHIM MUSA MOHAMMED SAULAWA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

BRAWAL LINES LIMITED Appellant(s)

AND

DEE-DAMOR DEVELOPMENT COMPANY LIMITED Respondent(s)

IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is a fall-out of the ruling of the Delta State High Court, Asaba Judicial Division, delivered on May 2, 2012 in Suit No. W/181/2008. By the said ruling, the lower court coram T.C. Makwe, J.; dismissed the Appellant’s motion on notice filed on January 20, 2012 on ground that it was totally misconceived.

BACKGROUND FACTS:
The facts and circumstances surrounding the instant appeal are gleanable from the record of appeal. It is evident from the record, that on 30/6/08, the Respondent filed the said suit in the lower court seeking some declaratory and injunctive reliefs against the Appellant. By the Amended Statement of Claim thereof, dated and filed on 26/6/09, the Respondent claimed the following reliefs against the Appellant:
i. A declaration that the deed of assignment executed on 13/2/1995 between the Plaintiff and the Defendant herein over an indeterminate portion of the Plaintiff’s land covered by Certificate of Occupancy No. BDSR 793 dated 24/2/81 measuring approximately 1.2 hectares situate, lying and being at along Airport Road, Warri which land is clearly shown on Survey Plan No. HAIL/DT/644/2006 prepared by Thomas O. Dabiri (Registered Surveyor) and dated 17/4/2006 is null, void and of no effect whatsoever.
ii. An Order setting aside and/or nullifying the said deed of assignment executed between the Plaintiff and the Defendant herein.
iii. An Order of perpetual injunction restraining the Defendant, its agent, thugs, privies, employees, policemen or purported policemen acting on its instruction or complaint and/or any person(s) acting by or on behalf of the Defendant from entering into or trespassing into any part approximately 1.2 hectares situate, lying and being at along Airport Road, Warri which land is clearly shown on Survey Plan No. HAIL/DT/644/2006 prepared by Thomas O. Dabiri (Registered Surveyor) and dated 17/4/2006.
iv. N50,000,000.00 (Fifty Million Naira) damages and 10% interest thereon from Judgment until the entire sum is liquidated.

Earlier on 15/05/08, the Appellant had filed a suit No. W/132/2008, vide a Writ of Summons, in the lower court against the Respondent and one other person thereby seeking the following reliefs:
1. A declaration that the Plaintiff is entitled to a statutory right of occupancy in respect of ALL PART, parcel or piece of land lying, being and situate at along Airport Road, Ogunu, Warri, in Warri South Local Government Area of Delta State of Nigeria a place within the jurisdiction of this Honourable Court, and shown or covered by Survey Plan No. DON/DT/92/95 made by D.O. Nnamani, Registered Surveyor dated 19th December, 1995.
2. The sum of N575,000.00 (Five Hundred and Seventy Five Thousand Naira) only being special damages for damage and destruction at part of the Plaintiff’s concrete wall fence by the Defendant, his agents, servant or privies.
3. The sum of N10,000,000.00 (Ten Million Naira) only being general damages for the Defendant’s acts of trespass to the said piece or parcel of land.
4. An order of perpetual injunction restraining the Defendants whether by themselves or by their agents, servants, privies or otherwise howsoever from entering further despoiling, altering the Plaintiff from peaceable possession/use of the land pending the hearing and determination of the substantive suit.
5. Any other legal remedies or equitable relief which this Honourable court may find that the Plaintiffs are entitled to having regards to the justice and or circumstances of the case.

Both suits in question were transferred to Asaba Judicial Division of the lower court and accordingly consolidated on 18/11/08. Eventually, the two consolidated suits proceeded to trial, in the course of which the Respondent called a sole witness. On the part thereof, the Appellant equally called a sole witness who testified as DW1. However, on 20/01/12, at the conclusion of the testimony of DW1, the Appellant’s learned counsel, Dr. T.C. Osanakpo, SAN filed a motion on notice seeking the following reliefs:
1. An Order dismissing Suit No. W/181/2008: DEE DAMOR DEVELOPMENT COMPANY LTD V. BRAWAL LINES LTD.
2. AND for such further or other orders as the Honourable court may deem fit to make in the circumstances.

The motion in question was predicated upon the ground that –
The Suit No. W/181/2008 is statute barred under the Limitation Law of Delta State.

On 22/02/12, the learned counsel to the parties adopted their respective written addresses regarding the motion in question. Thus, resulting in delivering the vexed ruling on the said 02/05/12 by the lower court to the conclusive effect, thus:
A glance at particularly paragraphs 7, 8, 9, 10 and 11 of the Amended Statement of Claim reproduced above shows that the cause of action arose on 24/07/2007 when the Defendant started laid false claim to indeterminate portion of the land in dispute and recently attempted to gain entrance into the land with the aid of thugs purporting to be policemen. From 24/07/2007 to 30/06/2008 when this action was filed is about 11 months and 6 days not up to one year.
Consequently, I hold that this action was filed within the limitation period of 5 years in contract matters and 10 years in land matters. The action is not statute barred. It is competent before court.
The application of the defendant argued by Dr. Osanakpo, SAN is therefore totally misconceived and it is hereby dismissed with N30,000.00 (thirty thousand naira) costs awarded in favour of the Plaintiffs.
T.C. MAKWE
JUDGE
02/05/2012

On 14/5/2012, the Appellant deemed it expedient to file a notice of appeal, predicated upon four grounds, against the ruling. On 28/01/15, when the appeal last came up for hearing, upon an oral application by the learned silk, the record of appeal was deemed properly compiled and transmitted. The supplementary Record of appeal was evidently transmitted on 25/6/09. Both the Appellant’s Brief of Argument and Reply brief were deemed properly filed on 28/01/15 and 08/5/13, respectively. The Respondent’s brief was filed on 08/11/12.

Instructively, the Appellant’s brief, personally settled by Dr. T.C. Osanakpo, SAN, spans a total of 15 pages. At page 4 of the said brief, three issues have been formulated, to the effect, thus:
(i) Whether or not the cause of action which accrued from the deed of assignment executed between the Appellant and the Respondent on the 13th February 1995 is not statute barred within the stipulations of Limitation Law of Delta State.
(ii) Whether or not the learned trial Judge exercised his judicial duty judiciously and judicially by failure to consider and pronounce on the property of cases canvassed by the Appellant in its Reply on points of Law.
(iii) Whether or not it was proper for the trial Court at the interlocutory stage to make pronouncement that touched on the merits of the matter.

The first issue, canvassed at pages 4-10 of the Appellant’s brief in question, was distilled from ground 1 of the Notice of Appeal. It was submitted by the learned Senior counsel, that the Respondent’s claim has a statute limitation. He referred to Sections 3 and 18 of the Limitation Law of Delta State. See EGBE VS. ADEFARASIN (No. 2) (1987) 1 NWLR (Pt. 47), @ 4 and MAJEKODUNMI VS. ABINA (2002) 3 NWLR (Pt. 755) 720 @ 748B.

It was further submitted, that by virtue of Sections 3 and 18 of the Limitation Law (Supra), an action founded in contract or tort can no longer be maintained after the expiration of five years from the date on which the course of action accrued. Likewise, an action for recovery of land cannot be maintained after ten years from the date on which the action accrued.

The case of ABUBAKAR VS. BO & AP LTD (2007) 18 NWLR (Pt. 1066) @ 35-36 paragraphs FA was cited and relied upon, to the effect that a cause of action is determined by the claim as disclosed in the Plaintiff’s Statement of Claim.

It was contended, that having due regard to the relief sought in paragraph 14 of the Respondent’s amended statement of claim, the complaints against the Appellant arose from the Deed of Assignment executed by both parties on 13/12/95. Therefore, it’s perverse for the lower court to find, as it did in the vexed ruling, that the cause of action arose subsequently in 2007 from the Suit filed by the Appellant, and the attempt thereby to gain entrance into the land in dispute. There was no claim by the Respondent for trespass either for declaration or damages for trespass against the Appellant. That, it’s purely conjectural whether the damages claimed are for breach of contract or for trespass to land. However, courts do not speculate. And that parties are bound by the pleadings thereof. See OVERSEAS CONSTRUCTION CO. (NIG.) LTD VS. CREEK ENTERPRISES (NIG.) LTD (1985) 3 NWLR (Pt. 13) 407; FIRST BANK OF NIG. LTD VS. T.S.A. IND. LTD (2007) ALL FWLR (Pt. 352) 1719 @1743 paragraphs C-E; UBN PLC VS. AYODARE & SONS (NIG.) LTD (2007) 13 NWLR (Pt. 1052).

Thus submitted, that the court was bound by the reliefs in paragraph 14 of the said Amended Statement of Claim to find that the cause of action was the Deed of Assignment and not to speculate on acts of trespass on which no reliefs were sought. That, reliefs (I) & (II) in paragraph 14 of the claim, were undoubtedly founded on breach of contract. That, to determine when a cause of action arose in a claim founded on contract, the pertinent questions are -(i) when was the contract breached; (ii) when did the offending party fail or refuse to do what he ought to do under the contract; or (iii) when did he do what he ought not to do under the contract. See LAWAL VS. EJIDIKE (1997) 2 NWLR (Pt. 487) 319 @ 328 G-H; AKINBADE VS. CHIEF REGISTRAR (2003) 3 NWLR (Pt. 808) 585 @ 601 C-E.

Allegedly, the answer to all the above three questions is the same and inferable from the Amended Statement of Claim.

According to the learned silk, the breach [of the contract] complained of by the Respondent occurred on 13/12/95, when it was alleged that the Appellant was unable to pay the purchase price. But that the trial court found in the vexed ruling that the Suit was filed on 30/6/2008. That, between 13/12/95 and 30/6/2008 is a period of 12 and a half years, which falls well outside the period of five years stipulated in Section 18 of the Limitation Law of Delta State.

It was argued, that under Section 3 of the Limitation Law of Delta State (Supra), time starts running from when the right of action first arose. Thus, the signing of the Deed of Assignment on 13/12/95, as pleaded by the Respondent, dispossessed the Respondent of the land in dispute. Any right to recover the land from the Appellant started running on 13/12/95, and must be exercised within 10 years. The court is urged to resolve the Issue No. 1 in favour of the Appellant, and to hold that the claim before the trial court was statute-barred, thereby extinguishing the right of action of the Respondent.

Both issues (ii) and (iii) have been argued together at pages 10-13 of the Appellant’s brief. Both issues were said to have been distilled from grounds 2 and 3 of the notice of appeal. In a nutshell, it was submitted that in the vexed ruling thereof, the lower court failed to consider the submissions of the Appellant, or the principles of law enunciated by this court and the Supreme Court canvassed at the trial. Thus, the lower court abdicated its judicial responsibility, which was compounded by prejudging the substantive claim before it. See OJUKWU VS. YAR’ADUA (2009) 12 NWLR (Pt. 1154) 50 @ 176 D-E; ADEWALE VS. GOVERNOR, EKITI STATE (2007) 2 NWLR (Pt. 1019) 634 @ 656 A-B, D-E; AKAPO VS. HAKEEM HABEEB (1992) 6 NWLR (Pt. 247) 266 @ 287.

Further submitted, that though the Respondent had closed the case thereof, and the Appellant had opened its case, the issue before the lower Court was an interlocutory one brought by way of a motion on notice. The substantive suit was yet to be determined. Therefore, the lower Court had a sacred duty not to prejudge the substantive suit, in determining the interlocutory issue of whether or not the claim was statute-barred. Without hearing the whole evidence in the matter, and even before the Appellant closed its case, the trial court prejudged the issue in the ruling thereof, thus:
A glance at particularly paragraphs 7, 8, 9, 10 and 11 of the Amended Statement of Claim reproduced above shows that the cause of action arose on 24/07/2007 when the Defendant started laid false claim to indeterminate portion of the land in dispute and recently attempted to gain entrance into the land with the aid of thugs purporting to be policemen. From 24/07/2007 to 30/06/2008 when this action was filed is about 11 months and 6 days not up to one year.

According to the learned silk, the consequence of the above pronouncement is that the substantive claim has been prejudged by the trial court, thereby infringing upon the Appellant’s right to fair hearing enshrined in the Constitution of the Federal Republic of Nigeria, 1999, as amended.

Thus, the court is urged upon to resolve the said issues (ii) and (iii) in favour of the Appellant, and accordingly hold that (i) the trial court abdicated its judicial responsibility to consider the arguments canvassed and authorities cited by counsel before it; and that (ii) the trial court prejudged the substantive matter in determining the interlocutory application.

Conclusively, the court has been urged upon to allow the appeal, and grant the reliefs sought in the notice of appeal.

On the other hand, the Respondent’s brief spans a total of eight pages. Two issues have been formulated at page 2 of the said brief, thus:
(i) Whether or not the learned trial Judge was right when he held that the Respondent’s suit was not statute barred having regard to the state of pleadings and affidavit evidence before him. Grounds 1 and 2.
(ii) Whether or not the learned trial Judge made any pronouncement that touched on the merits of the matter in his ruling dismissing the Appellant’s application. GROUND 4.

On Issue 1, it was submitted, without much ado, by the learned counsel, that the Suit No. W/181/2008 was not statute-barred. Further submitted, that the law is trite, that an objection to the hearing and determination of a suit on ground of statute of limitation is founded on jurisdiction of the court. In such an application, recourse is only had to the Writ of Summons and the statement of claim, in order to ascertain the cause of action, and when time begins to run vis-a-vis the institution of the action in court against the wrongful act of the defendant. See ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD (2007) ALL FWLR (Pt. 362) 1855 @ 1887 C-E.

It was further submitted, that by paragraph 8 of the Statement of Claim thereof, the Respondent has been in possession of the land in dispute, while the Appellant was never into possession of the said land. Therefore, up to the time as averred therein, no wrong has apparently been committed by the Appellant against the Respondent with regard to the land in dispute, for which an action was necessary. Allegedly, the submissions of the Appellant on Issues 1 & 2 were a total misconception. The court is thus urged to so hold, and discountenance the said submissions in the determination of the appeal.

It was contended, that by virtue of paragraphs 6 and 7 of the Statement of Claim, it’s apparent that by the Appellant’s failure to pay the purchase price for the disputed land, the Appellant had repudiated the contract, and the Respondent can elect to exercise his right to rescind the contract, which he did. That, both parties have treated the contract as rescinded. See AIKABELI VS. AFRICAN PETROLEUM LTD (2004) ALL FWLR (Pt. 221) 1463; BIYO VS. AKU (1996) 1 NWLR (Pt. 422) 1 @ 39. According to the learned counsel, before the said Suit (EHC/168/2007)
was filed in 2007, there was really no dispute between the parties over the land in dispute. But that the cause of action in the matter or dispute arose from when the Respondent’s possessory right/ownership over the land were being threatened by the unlawful acts of the Appellant. See ARABAMBI VS. ADVANCE BEVERAGES INDUSTRIES LTD (2006) ALL FWLR (Pt. 295) 581 @ 597; SAVAGE VS. UWECHIA (1972) 3 SC 214 @ 221; ABUBAKAR VS. BEBEJI OIL & ALLIED PRODUCTS LTD (Supra) @ 1888.
Thus, it stands to reason, that time would begin to run as from 24/7/07, when the Appellant resumed an already spent hostilities with the Respondent by instituting the said Suit No. EHC/168/07. BRAWAL LINES LTD VS. CHIEF ATALOKO in its attempt to unlawfully wrestle ownership of the land in dispute from the Respondent. See WOHEREM VS. EMEREUWA (2004) ALL FWLR (Pt. 221) 1570; UBA PLC VS. BTL IND. LTD (2007) ALL FWLR (Pt. 352) 1615.

The court is urged to so hold, and accordingly dismiss the appeal in the entirety thereof.

The second issue has been canvassed at pages 5-7 of the Respondent’s brief. It was submitted, in the main, that the lower Court did not pronounce on the merits of the case in the vexed ruling. The court is thus urged to discountenance the Appellant’s submission as regards the said issue.

Equally submitted, that in determining the Appellant’s application, the lower Court was required by law to consider the Writ of Summons and the Statement of Claim alone. That, the Respondent did not file any process in court which admitted the facts contained in the Statement of defence vis-a-vis the cause of action, in order to dislodge the averments contained in the Statement of Claim as to import the reasoning in WOHEREM VS. EMEREUWA (Supra) @ 1581 paragraph. The lower Court was left alone to consider the averments as contained in the Statement of Claim, in determining the cause of action in the matter. Therefore, the Appellant’s submission that the lower Court prejudged the substantive Suit in the interlocutory stage of the case was totally beside the point, and same should be discountenanced. The court is urged to dismiss the appeal in its entirety as lacking in merits.

The Appellant’s reply brief spans a total of 5 pages. The Appellant’s learned senior counsel submits, inter alia, that the Respondent has misconstrued the principles of law laid down in ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD (Supra) to contend that the cause of action accrued in 2007, hence was not caught up by the Limitation Law. However, reiterates that it is the reliefs sought in the Statement of Claim that determine the accrual of cause of action. See ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS LTD (Supra) @ 360 paragraphs F-H; ABDULHAMID VS. AKAR (2006) 13 NWLR (Pt. 996) 127 @ 144 paragraphs E -G; MAFIMISEBI VS. EHUWA (2007) 2 NWLR (Pt. 1018) 385 @ 428 paragraphs D-F.

Allegedly, the case of BIYO VS. AKU (1996) 1 NWLR (Pt. 422) 1 @ 39, was equally misconstrued by the Respondent, to argue that where the purchaser fails to pay the purchase price agreed by the parties. That, the vendor is entitled to consider himself discharged from liability to perform the contract or claim damages for breach of contract. Contrariwise, the learned silk contends that BIYO VS. AKU (Supra) is inapplicable to the instant appeal, because the statute of limitation was not raised in that case. Secondly, the reliefs sought therein were for the declaration of title to land and specific performance, and not cancellation and nullification of Deed of Assignment, as in the case. See LAWAL VS. EJIDIKE (1997) 2 NWLR (Pt. 487) 319 @ 328 paragraphs G -H.

The case of ARABAMBI VS. ADVANCE BEVERAGES IND. LTD (2006) ALL FWLR (Pt. 295) 581; (2005) 19 NWLR (Pt. 959) 1, cited and relied upon by the Respondent, was equally alleged to be distinguishable from the instant case, in the sense that the relief sought therein was damages for unlawful sale of Plaintiff’s plants and machinery. Contrariwise, in the instant appeal, the reliefs sought were for nullification and setting aside of Deed of Assignment.

The learned silk postulated that the Respondent’s contention in paragraph 4.15 of the brief thereof, regarding reliefs 1 & 2 of the Amended Statement of Claim, are mere surplusages. That, the said reliefs 1 & 2, and indeed 3 & 4 are ancillary reliefs. See MUDASHIRU VS. PERSONS UNKNOWN (2006) 8 NWLR (Pt. 982) 267 @ 279 C -D; ADEOGUN VS. EKUNRIN (2004) 2 NWLR (Pt. 586) 52 @ 72-73; NWAOGWUGWU VS. THE PRESIDENT FRN (2007) 6 NWLR (Pt. 1030) 237 @ 275 D-F; GAFAR VS. GOVT OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375 @ 388-399 G-C; AWONIYI VS. REGD TRUSTEES AMORL (2000) 10 NWLR (Pt. 676) 522) @ 539 E-F.

The cases of WOHEREM VS. EMEREUWA (2004) ALL FWLR (Pt. 221) 1570; UBA VS. BIL IND. LTD (2007) ALL FWLR (Pt. 352) 1615, were equally alleged to be distinguishable from the instant appeal.

On the whole, the court is urged upon to discountenance the submissions of the Respondent in question, and accordingly allow the appeal.

I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the far-reaching submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the records of appeal. In my considered view, the issues raised in the respective briefs of argument are far from being mutually exclusive. Thus, I have deemed it expedient to adopt the three issues articulated by the Appellant in the brief thereof for the determination of the appeal.

ISSUE NO. 1:
The first issue raises the very vexed question of whether or not the cause of action, which accrued from the Deed of Assignment executed by the respective parties on 13/02/95, was not statute barred within the stipulation of the Limitation Law of Delta State. The issue in question is apparently predicated upon Ground 1 of the Notice of Appeal.

For the purpose of determining the instant issue, the provisions of Sections 3 and 18 of the Limitation Law are very much instructive:
3. No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or if it first accrued to same person through whom he claims, to that person.
18. No action founded on contract, tort or any other action not specifically provided in parts II and III of the Law shall be brought after the expiration of 5 years from the date on which the cause of action accrued.

The word limit as a noun literally means a restriction or restraint; a boundary or defining line, the extent of power, right or authority. Thus, the term Limitation, denotes a statutory period after which a law or prosecution cannot, ordinarily, be brought in court. Also termed ‘Limitation(s) period’; Limitation of action, et al.

Literally, the word ’cause’ means something that produces an effect or result. Jurisprudentially, the term ’cause of action’ denotes a group of operative facts giving rise to one or more bases for suing. In other words, cause of action is a factual situation that entitles a person to seek and obtain a remedy in court from another person. Most interestingly, jurists all over the common world have found it difficult to accord a proper definition to the cause of action. According to Edwin E. Bryant, a cause of action:
May be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be -(a) a primary right of the Plaintiff actually violated by the defendant; or (b) the threatened violation of such right, which violation the Plaintiff is entitled to restrain or prevent, as in the case of actions or suits for injunction; or (c) it may be that there are doubts as to some duty or right, or the right beclouded by some apparent adverse right or claim, which the Plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property. See PLEADING UNDER THE CODES OF CIVIL PROCEDURE (1879), 2nd Edition @ 170, quoted extensively in BLACK’S LAW DICTIONARY (Supra) @ 251.
Contradistinctively, the term ‘new cause of action’ invariably refers to a claim not arising out of, or relating to the conduct, or occurrence, or transaction contained in the original pleading. It is trite that a Plaintiff may add claims to a suit without being adversely affected by a statute of limitations bar, as long as the original pleadings was timely filed. This is predicated on the trite principle, to the effect that an amended pleading often relates back to the date on which the original pleading was filed.
Jurisprudentially, the term ’cause of action’ has been interpreted as the entire circumstances giving rise to an enforceable relief of a party’s claim. That’s to say, what in effect amounts to
The fact or combination of facts which gives rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the Plaintiff his cause of complaint and the consequent damage. See SAVAGE VS. UWECHIA (1972) 3 SC, 214 @ 221 per Fatayi-Williams, JSC (as the learned Lord then was). See also ARABAMBI VS. ADVANCE BEVERAGES IND. LTD (2006) ALL FWLR (Pt. 295) 581 @ 597, per Aloma Murkhtar, JSC (as the learned Lord then was).

Thus, against the backdrop of the following authorities, it’s incumbent upon the court to critically, albeit dispassionately, consider the Writ of Summons vis-a-vis the extant Amended Statement of Claim of the Plaintiff (Respondent) in the Suit No. W/181/2008 in question. Curiously, however, for reasons best known thereto, the Appellant has not deemed it expedient to include the Writ of Summons in question in the main Record of Appeal thereof.

Undoubtedly, the Writ of Summons upon which the suit was instituted in the court below is not contained in the entire record of appeal and the Supplementary Record of Appeal. For the avoidance of doubt, the indexes of the two records in question are reproduced, thus:
(1)  INDEX TO RECORD OF APPEAL.
1. Respondent’s Statement of Claim filed on 30/6/2008 …………… Pages 1 -2
2. Appellant’s Amended Statement of Claim and Amended Statement of Defence filed on 20/1/2012 …    Pages 3 -8
3. Appellant’s Motion on Notice filed on 20/1/2012 …………………… Pages 9 -18
4. The Respondent’s Counter Affidavit and Written Address filed On 27/1/2012 …………    Pages 19 -24
5. The Appellant’s Further Affidavit in Reply to the Counter Affidavit ………….     Pages 25 -28
6. The Appellant’s Reply on Points of Law …………. Pages 29 -34
7. Proceedings of 22/2/2012 ……………………Pages 35 -37
8. Ruling delivered on 2/5/2012 ……………..Pages 38 -43
9. Notice of Appeal filed on 14/5/2012 ………….Pages 44 -48

(2) INDEX TO SUPPLEMENTARY RECORD OF APPEAL.
1. The Plaintiff Amended Statement of Claim filed on 25/6/2009 ……….Pages 49 -53

At page 2 of the main Record, the Statement of Claim was evidently dated and filed on 30/6/08. At page 5 of the said Record, the Amended Statement of Claim was filed on 19/6/2012. The respective parties are ad idem that the Writ of Summons, regarding the Suit No. W/181/2008 was filed on 30/6/2008. What’s more, at page 40, lines 7-9, of the said Record, is to the effect thus:
The issue for determination in this application is whether the cause of action arose in year 2007 or in 1995 for the purpose of computation of time up to 30th June, 2008 when the Writ of Summons in Suit No. W/181/2008 was filed.

On the part thereof, the lower Court has similarly remarked, inter alia, thus:
The issue for determination in this application is whether the cause of action arose in year 2007 or in 1995 for the purpose of computation of time up to 30th June, 2008 when the Writ of Summons in Suit No. W/181/2008 was filed. See page 40, lines 7-9 of the Record of Appeal.

Against the backdrop of the foregoing far-reaching postulations, there is every cogent reason for me to hold that due to the inexplicable omission of the originating process (the Writ of Summons) in question from the record of appeal, the instant appeal may [be] liable to be struck out by the court in limine. See OSUNG VS. THE STATE (Supra) @ 279 paragraphs B -B; 280 paragraphs A -B, per Coomasie, JSC. And I so hold.

As alluded to above, the instant appeal is against the ruling of the lower Court particularly regarding Suit No. W/181/2008. At page 41 lines 3-7 of the Record, the lower Court stated thus:
I have read the Writ of Summons and the Amended Statement of Claim in Suit No. W/181/2008. For ease of reference I shall reproduce hereunder the relevant paragraphs 3 to 14 of the Amended Statement of Claim.
“Amended Statement of Claim in Suit No. W/181/2008 Amended pursuant to Order of Court Dated 18/11/08.”

Most regrettably, however, the purported “Amended Statement of Claim in Suit No. W/181/2008 Amended pursuant to Order of Court Dated 18/11/08” is equally not available in the entire records of appeal. Undoubtedly, pages 8-9 of the Record relate to the “STATEMENT OF CLAIM in the said Suit No. W/181/2008, which had evidently been amended by the order of lower Court dated 18/11/08. The only Amended Statement is the one contained at pages 3-5 and which relates to Suit No. W/132/2008 AMENDED PURSUANT TO ORDER OF COURT DATED 18/11/08.

Against the backdrop of the foregoing far-reaching exposition of the records of appeal before this court, it has become rather obvious that the two most crucial originating processes in the instant case (No. W/181/2008) -(i) the Writ of Summons, and (ii) the Amended Statement of Claim pursuant to the order of the lower Court, dated 18/11/08, are neither contained in the main Records of Appeal nor in the Supplementary Record of Appeal. Thus, in the absence of the two most crucial processes in question, it would be extremely difficult, if not impossible, for this court to proceed to determine the appeal on the merits thereof. Undoubtedly, the appeal may be liable to be struck out. And my reason for so holding, is not at all far-fetched. As aptly reiterated by the Apex Court –
Where necessary documents are not in the record (as in the instant case, the Writ of Summons and the Extant Amended Statement in Suit No. W/181/2008), such an appeal is likely or liable to be struck out. See OSUNG VS. THE STATE (2012) 18 NWLR (Pt. 1332) 256 @ 279 paragraphs B-H; 280 paragraphs A-B, per Coomasie, JSC.

In the circumstance, I have deemed it most expedient to proceed to determine the appeal on the merits, for whatever it’s worth.

As alluded to above, the lower Court has remarked in the said Judgment at page 41, lines 3-7 of the Record of Appeal to the effect, thus:
I have read the Writ of Summons and the Amended Statement of Claim in Suit No. W/181/2008. For ease of reference I shall reproduce hereunder the relevant paragraphs 3 to 14 of the Amended Statement of Claim.
“Amended Statement of Claim in Suit No. W/181/2008 Amended pursuant to Order of Court Dated 18/11/08″…

It was held by the lower Court that paragraphs 7, 8, 9, 10 and 11 of the said Amended Statement of Claim above show that the cause of action in the instant case arose on 24/07/2007 when the defendant attempted to gain entry into the land with the aid of thugs purporting to be policemen. It was further held, that from 24/07/2007 to 30/06/2008 “when the instant case was filed was about 11 months and 6 days not up to one year.” Consequent whereupon, the lower Court came to the conclusion thus:
Consequently, I hold that this action was filed within the limitation period of 5 years in contract matters and 10 years in land matters. The action is not statute-barred. It is competent before court. The application of the Defendant argued by Dr. Osanakpo SAN is therefore totally misconceived and it is hereby dismissed with N30,000.00 (thirty thousand naira) costs awarded in favour of the Plaintiffs.

Having critically, albeit dispassionately, considered the submissions of the learned counsel contained in their respective briefs of argument, I am unable to disagree with the above findings of the lower Court, which said finding I believe is duly supported by the records of appeal.

Afortiori, in the instant case, it’s so obvious from the record, as rightly held by the lower Court, that the cause of action clearly accrued on 24/07/2007. That was the very date when the Appellant started laying claim to, and attempted to gain entrance, into the land in dispute with the aid of thugs purporting to be policemen. As rightly held by the lower Court, from 24/07/2007, when the Appellant started laying claim on the land in dispute, to 30/06/2008, when the instant action was filed at the lower Court, was merely about 11 and six days, definitely less than one year. Thus, as aptly found by the lower Court, the instant case was filed within the 5 year limitation period in contract, and 10 year limitation period in land matters, respectively. Thus, the instant action could not rightly be claimed to be statute-barred within the contemplation of Sections 3 and 18 of the Limitation Law of Delta State (Supra). The said action is therefore competent. And I so hold. See UBA PLC VS. BTL INDUSTRIES LTD (Supra) @ 1650-1651, paragraphs H-D; JALL CO. LTD VS. OWON BOYS TECH. SERVICES LTD (1995) 4 NWLR (Pt. 391) 534; FADARE VS. AG, OYO STATE (1982) NSCC 52; BOARD OF TRADE VS. CAYZER IRVINE & CO. LTD (1927) AC 610; AROWOLO VS. IFABIYI (2002) FWLR (Pt. 95) 296; (2002) 4 NWLR (Pt. 757) 356.

In the circumstance, the Issue No. 1 ought to be, and same is hereby, resolved against the Appellant.

ISSUES 2 & 3
The second issue raises the question of whether or not the lower Court exercised the judicial duty thereof judiciously and judicially by failing to consider and pronounce on the propriety of cases canvassed by the Appellant in its Reply on points of law. The third issue equally raises the vexed question of whether or not it was proper for the lower Court, at the interlocutory stage, to make pronouncement that touched on the merits of the case.

However, having carefully perused the vexed ruling in question, I am unable to uphold the Appellant’s contention, to the effect that the lower Court had denied the Appellant the right of fair hearing in the course of the decision thereof. It is evident on the face of the record, that the lower Court had deemed it expedient to peruse the Writ of Summons and the Amended Statement of Claim (both of which processes the Appellant failed to incorporate in the record of appeal, for reasons best known thereto), with a view to determining the accrued date of the cause of action in Suit No. W/181/2008 in question. I would want to hold, that what the lower Court did in the circumstance was in accord with the trite principle of law, to the effect thus –
It is a cardinal principle of law that to ascertain a cause of action, the immediate materials a court should look at are the Writ of Summons and the averments in the Statement of Claim, for it is by examining them that a court can satisfy itself on the actual grouse of a party and the remedy or relief it is seeking from the court. After determining the cause of action then by the very averments, the court can discern the time that a cause of action. See ABUBAKAR VS. BEBEJI OIL AND ALLIED PRODUCTS (2007) 18 NWLR (Pt. 1066) @ 35-36 paragraphs F-A.

What’s more, the Appellant has failed to specifically allude to any particular issue which the lower Court in the vexed ruling –
Failed to consider the submissions of the Appellant or the principle of law enunciated by this court and the Supreme Court canvassed before the trial court by so doing abdicated its judicial responsibility.

With a possible deference, the above insinuation is most regrettably misconceived, and highly reprehensible, to say the least. And I so hold.

Regarding the Issue No. 3, I think there is no gainsaying the fact that, the same is equally misconceived. Indeed, it’s a tritely fundamental doctrine, that a court in the exercise of the original or appellate jurisdictional competence thereof, has a duty to restrain itself from delving into the substantive issue(s) of the matter. See GADI VS. MALE.
It was aptly reiterated by the Apex that –
Where the court errs and decides the substantive matter at the interlocutory stage as in the instant, the proper thing to do is set the purported determination and remit the matter to the lower Court for proper
determination on the merit by a different panel. See OJUKWU VS. YAR’ADUA (2009) 12 NWLR (Pt. 1154) 50 @ 176 D-E. See also WALE VS. GOVERNOR EKITI STATE (2007) 2 NWLR (Pt. 1019) 634 @ 656 paragraphs A-B, D-E; AKAPO VS. HAKEEM-HABEEB (1992) 6 NWLR (Pt. 247) 266 @ 287.

In the instant case, there is every cogent reason for me to hold, that the lower Court could not rightly be said to have delved into the substantive matter at the interlocutory stage thereof. In the circumstances, both issues 2 & 3 are hereby resolved against the Appellant.

Hence, having effectively resolved each of the three issues raised in this appeal against the Appellant, there is no gainsaying the very fact that the instant appeal is grossly unmeritorious, and same is hereby dismissed by me.

Consequently, the ruling of the lower Court delivered by the Hon. Justice T.M. Makwe, on May 2, 2012, in Suit No. W/181/2008, is hereby at long last affirmed by me.

The Respondent shall gloriously be entitled to N50,000.00, as costs against the Appellant.

PHILOMENA MBUA EKPE, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother I.M.M. Saulawa (JCA). His Lordship has admirably dealt with all the salient issues articulated in this appeal to wit:
(i) Whether or not the cause of action which accrued from the deed of assignment executed between the Appellant and the Respondent on the 13th February 1995 is not statute barred within the stipulations of Limitation Law of Delta State.
(ii) Whether or not the learned trial Judge exercised his judicial duty judiciously and judicially by failure to consider and pronounce on the property of cases canvassed by the Appellant in its Reply on points of Law.
(iii) Whether or not it was proper for the trial Court at the interlocutory stage to make pronouncement that touched on the merits of the matter.

My particular interest is one issue (iii) on which I intend to add a few comments of my own. No doubt it is trite as in general legal parlance that a court of competent jurisdiction has a duty to guard against delving into the substantive issue of a matter in an interlocutory ruling. On perusing the entire brief of the appellant, it is observed that no specific allusion has been made by them to any particular issue in the said ruling of the lower Court.

In the instant case, I too hold that the lower Court had not delved into the substantive matter at the early interlocutory stage. For the above reason and the much fuller reasons adumbrated by my learned brother in the lead judgment, I too consider the instant appeal unmeritorious and is hereby also dismissed by me. Accordingly, the ruling by T.M. Makwe J. on the 2nd day of May, 2012 in suit No.W/181/2008 is affirmed. I abide by his Lordships order as to costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft the judgment just delivered by His Lordship, Ibrahim Mohammed Musa Saulawa, JCA. My Lord has in his characteristic erudition dealt with all the issues arising in this appeal. I subscribe to his reasoning and conclusions.

In ascertaining whether an action is statute barred, the Court looks at the date when the action was instituted and the date when the cause of action arose. The cause of action being the factual situation which gave rise to a right of action. The cause of action arises the moment a wrong is done to the plaintiff by the defendant. See EGBE vs. ADEFARASIN (1987) 1 NWLR (Pt.47) 1 at 20 and ADEKOYA vs. F.H.A. (2008) 11 NWLR (Pt.1099) 539 at 551 and 557. The determination of whether an action is caught by the statute of limitation is a matter of calculation of raw figures and a Court of law has no discretion in the matter: ADEKOYA vs. F.H.A. (supra) at 557.

From the facts pleaded in the Amended Statement of Claim, the lower Court got it right when it held that the cause of action accrued on 24th July 2007 when the Appellant stated laying adverse claims to the disputed land. With the calculation of the raw figures from 24th July 2007 to 30th June 2008, when the action was instituted, it becomes obvious that the action was instituted within one year of the accrual of the cause of action. The respective limitation periods in Section 3 and 18 of the Limitation Law of Delta State for commencement of an action to recover land and any other action is ten years and five years respectively. So from whichever perspective the Respondent’s action is construed, whether as one for recovery of land or an action founded on contract, tort or any other action, the right of action remains extant and enforceable as the suit is not caught by the statute of limitation.

It is for the foregoing reasons and the more detailed reasons contained in the lead judgment, which I adopt as mine, that I agree that this appeal has no modicum of merit. The Ruling of the lower Court in suit No. W/181/2008 delivered on 2nd May 2012 is hereby affirmed. I abide by the orders made in the lead judgment.

Appeal dismissed.

Appearances

Dr. T.C. Osanakpo, SAN with C.K. DibiaFor Appellant

AND

Nyerhovwo Ohre Esq.For Respondent